1. On October 22, 2001, the Inter-American Commission on Human Rights (the
“Commission”) received a petition from Ashurst, Morris, Crisp, a firm of Solicitors
in London, United Kingdom (the “Petitioners”) against the Government of Jamaica
(the “State” or “Jamaica”). The petition was presented on behalf of Mr. Whitley
Myrie, who is serving a life sentence in St. Catherine’s District Prison, Jamaica.
The petition stated that on October 2, 1991, Mr. Myrie was convicted of capital
murder by the St. James Circuit Court in Kingston, Jamaica and sentenced to
death, and that the Court of Appeal of Jamaica subsequently classified the murder
as non-capital and reduced his sentence from death to life imprisonment with
a minimum term to serve without parole of 15 years.

2. In their petition, the Petitioners have alleged that the State violated
Mr. Myrie’s rights under Articles 1, 4, 5, 8, 12, 24 and 25 of the American
Convention on Human Rights (the “Convention”) because of his conditions of detention
during the course of his criminal proceedings, the failure of the State to protect
against irregularities in Mr. Myrie’s trial, and the failure to make legal aid
available to pursue a Constitutional Motion in the domestic courts in connection
with his criminal proceedings.

3. The State did not provide any observations on the merits of the Petitioners’
petition.

4. In Report 7/03 dated February 20, 2003, the Commission decided to admit
Mr. Myrie’s petition and to continue with the analysis of the merits of his
case. As set forth in the present Report, having examined the information and
arguments concerning the merits of the petition, the Commission has concluded
that the State is responsible for violating Mr. Myrie’s right to humane treatment
under Articles 5(1) and 5(2) of the Convention due to his conditions of detention,
his right to a fair trial under Articles 8(1) and 8(2) of the Convention due
to the State’s failure to ensure that Mr. Myrie was provided with competent
and effective counsel during his trial, and his rights to a fair trial and to
judicial protection under Articles 8 and 25 of the Convention by reason of the
State’s failure to provide Mr. Myrie with legal assistance to pursue a Constitutional
Motion for protection against acts that violate his fundamental rights.

5. Based upon these conclusions, the Commission has recommended that the State
grant Mr. Myrie an effective remedy, which includes a re-trial in accordance
with due process protections prescribed under Article 8 of the Convention or,
where a re-trial in compliance with these protections is not possible, his release,
and compensation. The Commission has further recommended that the State take
the legislative or other measures as may be necessary to ensure Mr. Myrie’s
right to humane treatment in relation to his conditions of detention, that criminal
defendants who choose to be represented by counsel are provided with competent
and effective legal representation, and that the right to a fair hearing and
the right to judicial protection are given effect in Jamaica in relation to
recourse to Constitutional Motions.

II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT 7/03

6. In Report 7/03 adopted on February 20, 2003, the Commission declared that
Mr. Myrie’s petition was admissible in respect of Articles 1, 2, 5, 8, 24 and
25 of the American Convention and that it would continue with its analysis of
the merits of these claims. Report 7/03 was transmitted to the State and to
the Petitioners by note dated March 12, 2003. In the same notes, in accordance
with Article 38(1) of the Commission’s Rules of Procedure, the Commission requested
that the Petitioners provide any additional observations that they may have
on the merits of the case within a period of two months. Pursuant to Article
38(2) of its Rules, the Commission also placed itself at the disposal of the
parties concerned with a view to reaching a friendly settlement of the matter
in accordance with Article 48(1)(f) of the American Convention and requested
that the parties inform the Commission expeditiously whether they were interested
in pursuing a friendly settlement of the case.

7. The Commission did not receive any additional observations from the Petitioners
on the merits of the petition within the two month period prescribed under Article
38(1) of the Commission’s Rules. Accordingly, by note dated July 25, 2003, the
Commission requested that the State of Jamaica submit any additional observations
that it may have on the merits of the Petitioners’ petition within a period
of two months, in accordance with Article 38(1) of the Commission’s Rules.

8. As of the date of the present report, the Commission had not received any
observations from the State on the merits of the Petitioners’ petition.

III. POSITIONS OF THE PARTIES

A. Position of the Petitioners

9. The Petitioners claim that the St. James Circuit Court in Kingston convicted
Mr. Myrie of the capital murder of Dennis Grubb on October 2, 1991 and sentenced
him to death. On January 11, 1993, the Court of Appeal of Jamaica refused his
application for leave respecting his conviction for murder but classified his
offense as non-capital murder and reduced his sentence from death to life imprisonment
with a minimum term to serve before parole of 15 years. Mr. Myrie’s application
for Special Leave to Appeal to the Judicial Committee of the Privy Council was
subsequently dismissed on April 24, 2001.

10. Concerning the background to Mr. Myrie’s criminal proceedings, the Petitioners
claim that according to the Prosecution’s case, Mr. Myrie, together with three
other individuals, Teddy Williams, Walton James and Arthur Gillette, killed
Dennis Grubb on August 11, 1990 when Mr. Grubb and his common law wife, Sheila
Barrett, returned to their home from a party. The prosecution’s main witness
was Ms. Barrett, who testified that, on the night of Mr. Grubb’s murder, she
saw Mr. Myrie with a machete and heard his co-defendants speaking about a fight
with Mr. Grubb. She also claimed that Mr. Myrie and his co-defendants came to
their home on that night asking for Mr. Grubb, and that she later heard them
run into the bushes where Mr. Grubb’s body was later found.

11. According to the police evidence called at trial, Mr. Myrie provided a
statement to the police, and Mr. Myrie was cautioned before the statement was
taken. A hearing, known as a voir dire, was subsequently held during the trial
and in the presence of the jury to determine the admissibility of Mr. Myrie’s
statement, following which the trial judge held that the statement was made
by Mr. Myrie voluntarily and the statement was read out to the jury. In the
statement, Mr. Myrie was said to claim that on the evening of the party, as
he was leaving the event, Mr. Grubb threatened him and slashed him with a machete.
Mr. Myrie then ran back to the party to try to find a District Constable. The
only person he could find was Widcliffe Williams, so he told him what happened
and then went back up the road where he saw Mr. Grubb again. Mr. Grubb was holding
a machete and tried to hit the victim with it but slipped, and Mr. Myrie grabbed
the machete from Mr. Grubb, gave Mr. Grubb a “couple of chops,” and ran home
with the machete.

12. The petition also claims that during the trial, Mr. Myrie gave an unsworn
statement from the dock in which he stated:

My name is Whitley Myrie. I live at Salt Spring, St. James. I am a farmer,
age 30. I am not guilty of murder. Dennis attacked me with a machete and he
and I get into collusion, and I have to defend myself.

13. With respect to the substance of their complaints against the State, the
Petitioners have alleged that the State violated Mr. Myrie’s rights under Articles
1, 4, 5, 8, 12, 24 and 25 of the American Convention because of his conditions
of detention, the failure of the State to protect against irregularities in
Mr. Myrie’s trial, and the failure to make legal aid available to pursue a Constitutional
Motion in the domestic courts in connection with his criminal proceedings.

14. First, the Petitioners allege that the State is responsible for violations
of Mr. Myrie’s right to humane treatment contrary to Articles 5(1), 5(2) and
5(4) of the Convention due to his conditions of detention while in custody at
the Barnett Street police station, on remand at St. Catherine’s District Prison,
on death row at St. Catherine’s District Prison subsequent to his conviction
and, following his appeal, at the General Penitentiary and at St. Catherine’s
Prison where he is serving his life sentence.

15. In support of their allegations, the Petitioners have provided particulars
concerning the conditions of Mr. Myrie’s detention at each of these institutions,
in relation to such matters as the nature and quality of basic accommodations,
hygiene, and medical treatment. In particular, they claim that during his 3
months in custody at the Barnett Street Police Station, from August 1990 to
November 1990, Mr. Myrie was detained in a small cramped cell with other individuals,
was provided with poor quality food which was at times inedible, and was denied
the opportunity to exercise daily. They claim further that the conditions of
his cell were unsanitary and foul smelling.

16. The Petitioners also indicate that, while held on remand at St. Catherine’s
Prison for the 10-month period between November 1990 until the start of his
trial on September 30, 1991, there were no cells available and consequently
Mr. Myrie was confined to a small cramped passageway with other prisoners. The
passageway was hot and uncomfortable as the only ventilation was from a door
at the end of the passageway, and it contained no proper sanitation facilities
and was therefore constantly foul smelling and contained bugs, food scraps and
excretions. Mr. Myrie was not provided with any furniture or bedding and he
had to sleep on the floor, and his washing facilities included a hose. He was
denied any proper opportunity to exercise and the food was inedible and consequently
he often went without eating. The Petitioners also claim that Mr. Myrie suffered
from poor health and it was difficult to see a doctor, family visits were limited
in time and frequency, he was not allowed to make telephone calls, and there
were no educational facilities or books.

17. During Mr. Myrie’s detention on death row following his conviction, the
Petitioners claim that he was subjected to many of the same conditions as his
previous detention, relating to such matters as the size and condition of his
cell, lack of proper medical treatment, poor sanitation, limited access to his
family, and inadequate and unhygienic food and water. They also claim that Mr.
Myrie was subjected to mental and physical torture while on death row, as he
suffered from nightmares, was unable to sleep, and became very anxious, scared
and depressed. Moreover, the petition states that there was no adequate or effective
mechanism for dealing with prisoner complaints and that he was locked in his
cell for 23 hours per day and denied the opportunity to engage in any reasonable
exercise routine, and that this extended confinement aggravated the stress and
anxiety experienced by Mr. Myrie while on death row.

18. The Petitioners describe similar conditions experienced by Mr. Myrie during
his detention in the General Penitentiary from January 11, 1993 to March 2000
and in St. Catherine’s Prison from March 2000 to the date of his petition. During
his seven year period in the General Penitentiary, for example, Mr. Myrie claims
to have been confined in a four foot by eight foot cell with, on average, three
other prisoners. There was only a “slop pail” for use as a toilet, and Mr. Myrie
spent an average of 23 hours per day in this cell with no regular exercise routine.
The petition also indicates that a riot broke out at the General Penitentiary
in August 1997, where several inmates were killed and attacked, and during which
time Mr. Myrie feared for his safety due to a lack of security and supervision.
Similarly, a serious prison riot occurred at St. Catherine’s Prison on May 21,
2000, in which 300 prisoners were reportedly beaten by warders and soldiers.
Mr. Myrie claims that during this time, he was taken out of his cell at gunpoint
and beaten by warders and soldiers, and that his injuries were sufficiently
serious that he was eventually taken to the hospital.

19. In further support of their allegations, the Petitioners refer to reports
by a number of international human rights organizations, including Americas
Watch, the Jamaica Prisons Ombudsman, the Jamaica Council for Human Rights,
and Amnesty International, which have condemned conditions of imprisonment at
St. Catherine’s Prison and the General Penitentiary, and the circumstances surrounding
the riots of 1997 and 2000.

20. Based upon these factual allegations, the Petitioners argue that the State
is responsible for violations of the right to humane treatment contrary to Articles
5(1), 5(2), 5(4) and 5(6) of the American Convention, in conjunction with a
violation of Article 1(1) of the Convention. In particular, the Petitioners
contend that the guiding principle underlying Article 5 of the Convention as
a whole is the importance of the fundamental respect for individual human dignity
and integrity, and emphasize that the standards of treatment under Article 5
apply regardless of the nature of the offense for which the individual concerned
is imprisoned and do not depend on the level of development of the detaining
state.

21. In support of their claims, the Petitioners cite Rules 31, 38, 86-91,
140-152, 163-167 and 173 of the Jamaican Correctional Institution (Adult Correctional
Center) Rules 1991 concerning such matters as medical treatment, provision of
adequate accommodation, clothing, bedding and food, and the availability of
an effective complaints mechanism, which the Petitioners claim have not been
respected by Jamaica. Similarly, the Petitioners cite Rules 8, 9(1), 10 11,
12, 13, 14, 15, 16, 19, 20(1), 21(1), 22(1), 22(2), 22(3), 24, 25(1), 25(2),
26(1), 26(2), 35(1), 36(1), (2), (3), (4), 57, 71(2), 71(3) and 77 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners, which provide
for basic standards in respect of accommodation, hygiene, exercise and medical
treatment for prisoners, and which the Petitioners claim have not been respected
by Jamaica concerning the cell and prison conditions that Mr. Myrie has endured
since his arrest. Further, the Petitioners claim that these conditions have
been exacerbated by the length of time during which Mr. Myrie has been detained,
namely 11 years.

22. In addition to the provisions of the above instruments, the Petitioners
have referred to case law of the inter-American, European and United Nations
human rights systems, which they assert supports their contention that Mr. Myrie’s
conditions have failed to satisfy the standards under Article 5 of the American
Convention. Among the decisions cited by the Petitioners are the reports in
the cases of McKenzie et al. v. Jamaica[1] and Lamey et al.
v. Jamaica,[2] in which this Commission found the conditions
of detention experienced by the prisoners in those complaints to violate Articles
5(1) and 5(2) of the Convention. The Petitioners also refer to the judgment
of the Inter-American Court of Human Rights in the Suarez Rosero Case,[3]
in which the Court found that overcrowded and unhygienic conditions of detention
devoid of natural light and ventilation over a prolonged period of time failed
to meet the standards under Article 5. Similarly, the Petitioners cite interpretations
by the European Commission and Court of Human Rights of Article 3 of the European
Convention on Human Rights[4] as well as conclusions of the
European Committee for the Prevention of Torture and Inhuman and Degrading Treatment
of Prisoners[5] concerning conditions of detention involving
overcrowding, the absence of at least one hour of exercise a day in open air,
and the use of slop pails in cells. Finally, the Petitioners refer to the General
Comments of the UN Human Rights Committee on Articles 7 and 10 of the International
Covenant on Civil and Political Rights[6] as well as its views
in several individual cases,[7] which the Petitioners allege
were critical of conditions similar to those experienced by Mr. Myrie.

23. Based upon their factual and legal observations, the Petitioners contend
that the State is responsible for infringing Mr. Myrie’s physical and mental
integrity and subjecting him to cruel, inhuman and degrading treatment in violation
of Article 5 of the Convention.

24. The Petitioners also contend that the State is responsible for violations
of Mr. Myrie’s right to a fair trial under Article 8 of the Convention, on several
grounds. The Petitioners first argue that Mr. Myrie was convicted based upon
evidence that was improperly obtained contrary to Article 8(1) of the Convention,
because he was forced to sign a confession statement under threat, which was
subsequently used as evidence at trial. In his statement, Mr. Myrie is said
to have admitted striking Mr. Grubb with a machete but claimed to have done
so in self defense. According to Mr. Myrie, his statement was taken under the
following circumstances:

On 24 August 1990 I was taken to the Criminal Investigation Branch office at
9 Sewell Avenue, Montego Bay where I was interviewed by Detective Inspector
John Morris. Detective Inspector Morris asked me if I was able to read or write.
I told him that I was unable to read but could write my name. During the interview
Constable Francis Morris was behind me and pushed what was either a gun or a
stick into my back. I was so frightened that I was unable to turn around. I
was forced to sign a statement that was used as evidence at my trial.

25. In addition, the Petitioners claim that Mr. Myrie’s right to a fair hearing
with due guarantees under Article 8(1) of the Convention was also violated due
to the trial judge’s decision to allow the jury to remain during the voir dire
to determine whether the statement given my Mr. Myrie on August 24, 1990 was
given voluntarily and was therefore admissible. During the voir dire, Mr. Myrie
and Inspector Morris gave evidence. Although Mr. Myrie claimed that he had been
poked three times with a stick and was induced to make his statement, the trial
judge concluded that the statement had been given voluntarily, finding “I do
not accept what the accused man has said; I accept the evidence of Inspector
John Morris that this accused man voluntarily gave the statement and there was
no inducement at all, and I will admit the statement into evidence as voluntarily
made.” Mr. Myrie’s defense counsel failed to ask for the jury to be removed
during the voir dire. To the contrary, he requested for the jury to remain,
despite the fact that under domestic law, a judge’s decision on a voir dire
to determine the admissibility of a confession should not be revealed to the
jury, since to do so might cause unfair prejudice to the jury by conveying the
impression that the judge had reached a concluded view on the credibility of
the witness and defendant.[8]

26. The Petitioners claim that the trial judge should not have acceded to
the defense counsel’s request that the jury remain, because the decision ultimately
was for the judge to make and in the circumstances the only reasonable decision
should have been to exclude the jury. They also claim that this submission is
supported by the jurisprudence of domestic appeal courts in considering similar
circumstances.[9] The Petitioners therefore argue that Mr.
Myrie was prejudiced because the jury heard the trial judge make specific findings
about Mr. Myrie’s credibility and the voluntariness of the statement, and at
the same time the trial judge directed the jury that it was for them to decide
whether the statement was made voluntarily. According to the Petitioners, this
confusion was compounded by the trial judge’s erroneous direction that the jury
was entitled to rely on the confession even if they considered that it was not
voluntarily given, notwithstanding the fact that a statement is only admissible
if the prosecution proves beyond a reasonable doubt that it was given voluntarily.[10]

27. In addition, the Petitioners argue that Mr. Myrie was denied a fair hearing
because the trial judge erred in giving reasons in the presence of the jury
for finding that there was no case to answer against Mr. Myrie’s co-defendants
Teddy Williams, Walton James and Arthur Gillette. Specifically, the Petitioners
claim that in ruling that there was no case to answer against the three co-defendants,
the judge told the jury the following, after which he improperly reviewed the
evidence against the three men to indicate why in his view it was weak:

It is the duty of the prosecution to adduce such evidence as will satisfy all
the ingredients of the charge made against the accused persons, and if at the
close of the prosecutions they have failed to do so, then it is the duty of
the court to defense counsel (sic) and to direct you, Madam Foreman and members
of the jury, to return a verdict of not guilty.

28. Relying in part on domestic case law, the Petitioners argue that this
irregularity prejudiced Mr. Myrie because the jury was told that there was not
sufficient evidence with regard to the three co-defendants, which the jury may
well have understood to mean that there was sufficient evidence to convict Mr.
Myrie. At no stage did the judge explain to the jury what the proper test was
that he was applying in reaching the conclusion that there was no case to answer,
and in the Petitioners’ view, the direction quoted above may well have left
the opposite impression.

29. Further, the Petitioners argue that the trial judge erred in allowing
the trial to continue in the absence of Mr. Myrie’s trial attorney, contrary
to Article 8(1) and 8(2)(d) of the Convention. They claim that on the second
day of the trial, Mr. Myrie’s counsel was not present, but nevertheless the
trial judge permitted the trial to proceed, during which time:

(a) witness Patrick Barrett indicated that he saw the deceased out by the gate
prior to going to get his uncle and confirmed that he saw people scattering
down the road and that the deceased had something in his hand;

(b) District Constable Rupert Samuels gave all his evidence in chief without
Mr. Myrie’s attorney being present, including the evidence that Mr. Myrie placed
a machete to his throat and threatened him.[11]

30. The Petitioners claim that the failure of the trial judge to postpone
the trial to allow Mr. Myrie’s attorney to be present constituted a material
irregularity that led to evidence seriously damaging to Mr. Myrie’s case going
unchallenged. They also claim that this irregularity was obvious to the Court,
particularly in the context of a capital trial, and that Mr. Myrie was therefore
deprived of proper representation during his trial, contrary to Article 8 of
the Convention.

31. In addition, the Petitioners argue that the trial judge decided not to
allow the character of the deceased to be examined and that this decision deprived
Mr. Myrie of his right to a fair trial, contrary to Article 8(1) and (2) of
the American Convention. They claim that this prevented relevant and admissible
evidence as to the circumstances in which Mr. Grubb’s death may have occurred
from being heard by the jury. In particular, the Petitioners state that the
question to be decided by the jury was whether Mr. Myrie acted in lawful self-defense
by genuinely fearing for his own safety so as to feel that he had to act as
he did. They assert that as a consequence, the question of whether the deceased
was a violent man was clearly relevant to this issue, and therefore that the
trial judge’s failure to allow these questions harmed Mr. Myrie’s defense in
a very real manner.

32. Further, the Petitioners contend that Mr. Myrie was deprived of his right
to a fair trial contrary to Articles 8(1) and 8(2)(d) and (e) of the Convention
due to the incompetence of his trial counsel, Mr. Fairclough. The Petitioners
contend that the performance of Mr. Myrie’s counsel fell far below the standard
required of counsel defending a murder trial, contrary to Mr. Myrie’s right
to counsel and hence to a fair trial under Section 20 of the Jamaican Constitution.[12]
In particular, they claim that on the second day of the trial, Mr. Myrie’s counsel
was absent at the beginning of proceedings, apparently for the reason that he
had not been feeling well on that day and on the day prior. In these circumstances,
the Petitioners argue that counsel should not have commenced trial or, had he
become ill during trial, he should have sought to have the jury discharged.
The Petitioners also assert that it must be seriously open to question as to
whether Mr. Fairclough’s performance during the trial was affected by his illness.
In addition, the Petitioners claim that Mr. Myrie’s counsel left the defendant
without representation for a significant part of a two day trial for a capital
offense without asking for or receiving an adjournment. Other alleged errors
on the part of trial counsel included asking that the voir dire take place before
the jury for no conceivable strategic reason, failing to ask that the jury retire
when it became apparent that the other defendants were going to be discharged,
and failing to pursue with any vigor the issue of the deceased’s violent character.

33. Based upon these errors and the corresponding denial of Mr. Myrie’s right
to a fair trial, the Petitioners argue that Mr. Myrie’s conviction itself is
unsafe and therefore must be vacated.[13] They also argue
that, as Mr. Myrie was convicted after the introduction of inadmissible evidence
during the trial, and misdirections and failures to direct the jury by the trial
judge, these defects, separately or cumulatively, have lead to Mr. Myrie’s conviction
when his guilt was not proved according to the applicable law.

34. Finally, the Petitioners argue that Mr. Myrie has been denied access to
a court and has been denied an effective remedy for the violations of the Constitution
of Jamaica and the American Convention to which he is alleged to have been subjected,
contrary to Articles 24 and 25 of the Convention. The Petitioners state in this
regard that section 25(1) of the Constitution of Jamaica gives any person the
right to apply to the Supreme Court for redress in respect of alleged constitutional
violations, but that, due to a lack of funds, this is not a right of access
that can be exercised by Mr. Myrie. They argue that Constitutional Motions give
rise to complex and intricate issues of law that require an accused to be assisted
by an attorney and that the costs of instituting proceedings in the High Court
are extremely expensive and beyond Mr. Myrie’s means. The Petitioners also argue
that Jamaica does not provide legal aid for Constitutional Motions and that
it is virtually impossible for those in prison to secure the services of counsel
who are willing to carry out such work pro bono in support of their arguments
in this regard, the Petitioners cite decisions of this Commission as well as
the European Court of Human Rights and the UN Human Rights Committee indicating
that a right of access to a court means access in fact as well as in law.[14]

35. The Petitioners argue that constitutional proceedings in the context of
Mr. Myrie’s case should be considered criminal in nature, given that they arise
because of earlier criminal proceedings and might serve to vacate his sentence.
Whether classified as criminal or civil, however, the Petitioners argue that
Mr. Myrie should have legal aid in order to pursue them, as the complexity of
constitutional proceedings means that he is unable to argue them himself and
should have the assistance of professional lawyers. They refer in this connection
to the Commission’s decision in the case of Leroy Lamey et al., in which it
was recognized that constitutional motions dealing with the issues raised in
that matter would be procedurally and substantively complex and could not effectively
be raised or presented by the petitioners in the absence of legal representation,
and that the State’s obligation in respect of legal assistance for constitutional
motions flows from Articles 8 and 25 of the Convention.

36. Based upon the foregoing submissions, the Petitioners contend that the
State is responsible for violations of Mr. Myrie’s rights under Articles 24
and 25 of the American Convention by denying him the ability to seek, on a basis
of equality, simple and prompt recourse to a competent court or tribunal for
protection against acts that violate his fundamental rights.

B. Position of the State

37. As indicated above, in its communication to the State dated July 25, 2003,
the Commission requested that the State submit any additional observations that
it may have on the merits of the Petitioners’ petition within a period of two
months, in accordance with Article 38(1) of the Commission’s Rules of Procedure.
As of the date of the present report, the Commission had not received any observations
from the State.

IV. ANALYSIS

38. The Petitioners have raised three principal issues in their petition. First,
they allege that the State is responsible for violating Mr. Myrie’s right to
humane treatment under Article 5 of the Convention because of his conditions
of detention. Second, they allege that the State is responsible for violating
Mr. Myrie’s right to a fair trial under Article 8 of the Convention because
of irregularities in his trial committed by the judge and his State-appointed
trial attorney. Third, the Petitioners claim that the State is responsible for
violating Mr. Myrie’s rights to a fair trial and to judicial protection under
Articles 8, 24 and 25 of the Convention by failing to make legal aid available
to him to pursue a Constitutional Motion before the domestic courts for the
protection of his fundamental rights.

39. At this point in its analysis, the Commission notes that despite its requests,
the State has not provided the Commission with any observations, information
or evidence concerning the merits of the Petitioners’ allegations. Consequently,
in accordance with Article 39 of its Rules of Procedure, the Commission will
presume the facts alleged by the Petitioners to be true, except where the evidence
may lead to a different conclusion.

A. Article 5 of the Convention - Conditions of Detention

40. The Petitioners have first alleged that the State is responsible for violations
of Mr. Myrie’s right to humane treatment contrary to Articles 5(1), 5(2) and
5(4) of the Convention because of his conditions of detention while in custody
at the Barnett Street police station, on remand at St. Catherine’s District
Prison, on death row at St. Catherine’s District Prison following his conviction
and, following his appeal, at the General Penitentiary and at St. Catherine’s
Prison where he is serving his life sentence.

41. As described in Part III.A of this Report, the Petitioners have made numerous
allegations respecting Mr. Myrie’s conditions of detention at the various facilities
in which he has been incarcerated. In particular, they claim that during his
pre-trial and post-conviction proceedings, which began with his arrest in August
1990 and continued to the lodging of his petition, he was held in cramped and
overcrowded quarters with poor ventilation and inadequate sanitation. They claim
that Mr. Myrie was not provided with proper furniture or bedding and that the
food he received was of poor quality and frequently inedible. The Petitioners
also indicate that Mr. Myrie was denied access to regular exercise, nor did
he have access to educational and reading materials. Further, the petition refers
to two riots that occurred during Mr. Myrie’s incarceration, the first at the
General Penitentiary in August 1997 and the second at St. Catherine’s Prison
in May 2000. During these events, Mr. Myrie feared for his safety, stating that
“[o]n the first day of the riot, 20 August 1997, 2 inmates were killed. The
police and army were brought in but did not regain control of the prison until
23 August 1997. By this time several prisoners had been burned or stabbed to
death in their cells. I just spent these days in fear of my life as there was
no one to ensure my safety. As a result of these riots, I spent the entire time
at this prison wondering whether I would be the next person killed. It was extremely
frightening to live every day like this.” In addition, during the second riot,
Mr. Myrie claims to have been removed from his cell at gunpoint and beaten by
guards and soldiers, suffering injuries that required him to be taken to the
hospital.

42. The Petitioners argue that their allegations are corroborated by more general
sources of information concerning prison conditions in Jamaica. These include
reports by Americas Watch, the Jamaica Prisons Ombudsman, the Jamaica Council
for Human Rights, and Amnesty International, which have condemned conditions
of imprisonment at St. Catherine’s Prison and the General Penitentiary and the
circumstances surrounding the riots of 1997 and 2000 in these facilities.

43. The Commission must evaluate whether the conditions described by Mr. Myrie
disclose violations of the State’s obligations under the American Convention,
in particular its obligation under Article 5 of the Convention not to subject
Mr. Myrie to inhumane treatment. As indicated above, in the absence of any information
from the State concerning Mr. Myrie’s conditions of detention, the Commission
will evaluate these claims on the basis that the facts alleged by the Petitioners
are true, unless the evidence leads to a different conclusion. After carefully
considering the information available, the Commission has found that Mr. Myrie’s
detention conditions failed to satisfy the standards mandated by Articles 5(1)
and 5(2) of the Convention.

44. In reaching this conclusion, the Commission has assessed the details of
Mr. Myrie’s conditions in light of previous decisions of this Commission and
by the Inter-American Court of Human Rights, in which similar conditions of
detention were found to violate Article 5 of the Convention.[15]
Like the defendants in these cases, the record in the present complaint indicates
that Mr. Myrie had been held in confined and crowded conditions with inadequate
hygiene or ventilation since August 1990. This included 13 months in pre-trial
detention, 15 months on death row following his conviction, and nearly 9 years
in confinement following the commutation of his sentence by the Court of Appeal.
During this period, he has been denied proper nutrition and hygiene, and has
not had access to regular exercise, reading or educational facilities. Moreover,
Mr. Myrie’s life and physical integrity were placed in jeopardy during the prison
riots in 1997 and 2000, during which time prison authorities were not in control
of parts of the facility, and he was the subject of severe physical abuse at
the hands of state functionaries during the second riot in 2000. These observations,
together with the length of time over which Mr. Myrie has been held in detention,
indicate that his treatment has failed to meet the minimum standards under Articles
5(1) and 5(2) of the Convention. As the Commission has observed in previous
cases, these standards apply irrespective of the nature of the conduct for which
the person in question has been imprisoned[16] and regardless
of the level of development of a particular State Party to the Convention.[17]

45. A comparison of Mr. Myrie’s prison conditions with international standards
for the treatment of prisoners also suggests that his treatment has failed to
respect minimum requirements of humane treatment. In particular, Rules 10, 11,
12, 15, and 21 of the United Nations Standard Minimum Rules for the Treatment
of Prisoners,[18] which the Commission has previously indicated
provide reliable benchmarks as to minimum international standards for the humane
treatment of prisoners, prescribe the following basic standards in respect of
accommodation, hygiene, and exercise:

10. All accommodation provided for the use of prisoners and in particular all
sleeping arrangements shall meet all requirements of health, due regard being
paid to climactic conditions and particularly to cubic content of air, minimum
floor space, lighting, heating and ventilation.

11. In all places where prisoners are required to live or work,

(a) the windows shall be large enough to enable the prisoners to read or work
by natural light, and shall be so constructed that they can allow the entrance
of fresh air whether or not there is artificial ventilation;

(b) Artificial light shall be provided sufficient for the prisoners to read
or work without injury to eyesight.

12. The sanitary installations shall be adequate to enable every prisoner to
comply with the needs of nature when necessary and in a clean and decent manner.

15. Prisoners shall be required to keep their persons clean, and to this end
they shall be provided with water and with such toilet articles as are necessary
for health and cleanliness.

21.(1) Every prisoner who is not employed in outdoor work shall have at least
one hour of suitable exercise in the open air daily if the weather permits.

(2) Young prisoners, and others of suitable age and physique, shall receive
physical and recreational training during the period of exercise. To this end
space, installations and equipment should be provided.

46. It is evident based upon the Petitioners' allegations that the State has
failed to satisfy these minimum standards of proper treatment of prisoners.
The cumulative impact of such conditions, together with the length of time for
which Mr. Myrie has been incarcerated in connection with his criminal proceedings,
cannot be considered consistent with the right to humane treatment under Article
5 of the Convention.

47. Consequently, the Commission finds that the conditions of detention to
which Mr. Myrie has been subjected fail to respect the physical, mental and
moral integrity of the victims, as required under Article 5(1) of the Convention,
and, in all of the circumstances, constitute cruel, inhuman or degrading treatment
or punishment contrary to Article 5(2) of the Convention. The Commission therefore
finds the State responsible for violations of these provisions of the Convention
in respect of Mr. Myrie, in conjunction with the State‘s obligations under Article
1(1) of the Convention.

B. Article 8 of the Convention – Right to a Fair Trial

48. The Petitioners also contend that the State is responsible for violations
of Mr. Myrie’s right to a fair trial under Article 8 of the Convention, on several
grounds. They first argue that Mr. Myrie was forced to sign a confession statement
under threat, which was subsequently used as evidence at trial. Second, they
allege that the trial judge made several fundamental errors in the manner in
which he conducted Mr. Myrie’s trial. Third, the Petitioners contend that the
performance of Mr. Myrie’s attorney fell far below the standard required of
counsel defending a murder trial.

49. Concerning the alleged use of a coerced confession, Mr. Myrie has described
the taking of his statement as follows:

On 24 August 1990 I was taken to the Criminal Investigation Branch office at
9 Sewell Avenue, Montego Bay where I was interviewed by Detective Inspector
John Morris. Detective Inspector Morris asked me if I was able to read or write.
I told him that I was unable to read but could write my name. During the interview
Constable Frank Morris was behind me and pushed what was either a gun or a stick
into my back. I was so frightened that I was unable to turn around. I was forced
to sign a statement and this was used as evidence at my trial.

50. The record also indicates that in his statement, Mr. Myrie was said to
claim that on the evening of the party, as he was leaving the event, Mr. Grubb
threatened him and slashed him with a machete. Mr. Myrie then ran back to the
party to try to find a District Constable. The only person he could find was
Widcliffe Williams so he told him what happened and then went back up the road
where he saw Mr. Grubb again. Mr. Grubb was holding a machete and tried to hit
the victim with it but slipped, and Mr. Myrie grabbed the machete from Mr. Grubb,
gave Mr. Grubb a “couple of chops” and ran home with the machete.

51. According to the petition, a voir dire was held before the trial judge
concerning the voluntariness of Mr. Myrie’s statement. During this hearing,
both Mr. Myrie and Inspector Morris gave evidence, and the trial judge ultimately
concluded that he accepted the testimony of the police officer over that of
Mr. Myrie and concluded that the statement was made voluntarily. The Petitioners
therefore appear to argue before the Commission that this decision was erroneous
and that the statement should not have been entered into evidence.

52. Concerning the procedures in Mr. Myrie’s trial, the Petitioners challenge
several aspects of the manner in which the trial judge conducted the proceeding.
They argue that the judge erred in permitting the jury to remain in the courtroom
during the hearing in which the voluntariness of Mr. Myrie’s statement was determined.
They also contend that the trial judge should not have given reasons in the
presence of the jury for his finding that there was no case to answer against
Mr. Myrie’s three co-defendants. The Petitioners claim that the trial judge
erred by permitting the trial to continue during a period when Mr. Myrie’s attorney
was not present in the courtroom. Finally, the Petitioners argue that Mr. Myrie
suffered prejudice as a result of the trial judge’s decision not to allow the
character of the deceased to be raised as an issue during the course of the
trial.

53. The third due process issue raised by the Petitioners is the contention
that Mr. Myrie was the victim of a violation of his right to a fair trial under
Articles 8(1) and 8(2)(d) and (e) of the Convention due to the substandard performance
of his state-appointed counsel. They base their claims of incompetence on several
incidents during the course of Mr. Myrie’s trial. They claim that Mr. Myrie’s
counsel was absent for some portion of the trial due to ill health and, in light
of this, should have either postponed the commencement of the trial or sought
to have the jury discharged. The Petitioners also claim that Mr. Myrie’s lawyer
left him without representation for a significant part of his two-day trial
without asking for or receiving an adjournment, and that during this time potentially
damaging evidence was introduced by the prosecution. In addition, the Petitioners
claim that Mr. Myrie’s lawyer failed to take certain measures to protect Mr.
Myrie from prejudice, by asking that the hearing on the voluntariness of Mr.
Myrie’s statement take place before the jury, failing to ask that the jury retire
when it became apparent that the other defendants were going to be discharged,
and failing to pursue forcefully the issue of whether evidence as to the deceased’s
violent character should have been admissible during the trial.

54. Based upon the forgoing alleged violations of Article 8 of the Convention,
the Petitioners contend that Mr. Myrie’s conviction itself is unsafe and therefore
must be set aside.

55. In evaluating the Petitioners’ contentions concerning the admissibility
of Mr. Myrie’s statement and the conduct of the trial judge, the Commission
must take into account its approach, as articulated in previous cases, that
it is generally for the appellate courts of States Parties, and not the Commission,
to review the manner in which a trial was conducted, unless it is clear that
the judge's conduct was arbitrary or amounted to a denial of justice or that
the judge manifestly violated his obligation of impartiality.[19]

56. With respect to the allegations concerning Mr. Myrie’s statement, the Commission
notes that the Petitioners have presented before the Commission the same account
given by Mr. Myrie concerning the taking of his statement that had been presented
to the trial judge. According to the record, the trial judge received evidence
from both Mr. Myrie and the police officer who took the statement, Inspector
John Morris. After considering the matter, the trial judge accepted the evidence
of Inspector Morris and found that Mr. Myrie had given the statement voluntarily.[20]
There is no information on the record indicating that the trial judge’s decision
in this regard was arbitrary or was otherwise characterized by a denial of justice.
The Commission therefore finds no grounds upon which to reach a different decision
as to the admissibility of Mr. Myrie’s statement than that of the trial judge,
who had the benefit of considering all of the pertinent evidence. Accordingly,
the Commission does not find a violation of Article 8 of the Convention in connection
with the use of Mr. Myrie’s statement at trial.

57. The Commission has also carefully reviewed the Petitioners’ allegations
concerning other aspects of the manner in which the trial judge conducted Mr.
Myrie’s trial, including their claim that he failed to instruct the jury in
accordance with the requirements of domestic law, permitted the jury to remain
in the courtroom during both the voir dire and when ruling that there was no
case to answer against Mr. Myrie’s co-defendants, and permitted Mr. Myrie’s
trial to proceed in the absence of his trial attorney. After evaluating these
claims in light of the standard of review indicated above, the Commission has
concluded that the procedures followed during Mr. Myrie’s trial disclose a denial
of justice in two respects, namely the fact that the trial judge allowed the
voir dire on the admissibility of Mr. Myrie’s statement to be held in the presence
of the jury, and that the trial judge continued with the trial during periods
when Mr. Myrie’s attorney was absent. Concerning the former issue, the evidence
indicates that the trial judge permitted the jury to remain in the courtroom
during the voir dire on Mr. Myrie’s statement. According to the record, this
approach was inconsistent with established domestic jurisprudence requiring
the absence of a jury during a voir dire in order to protect a defendant from
unfair prejudice,[21] with no apparent justification for this
irregularity.[22] Moreover, the Commission considers that
in the circumstances, it is evident that Mr. Myrie may have suffered prejudice
as a result of the continued presence of the jury. In determining whether the
statement was admissible, the trial judge received conflicting testimony from
Mr. Myrie and Inspector John Morris and ultimately accepted Inspector Morris’
account of Mr. Myrie’s interrogation. Under these circumstances, the jury may
have been have left with the impression that a final conclusion as to Mr. Myrie’s
credibility had been reached by the trial judge. The Commission also notes that
the issue of the jury’s presence during the voir dire was not addressed by the
Court of Appeal in its judgment of January 11, 1993.[23]

58. Concerning the conduct of Mr. Myrie’s attorney, the Petitioners have claimed
that on the second day of the trial, Mr. Myrie’s counsel was absent at the beginning
of proceedings, apparently for the reason that he had not been feeling well
on that day and the day prior. Moreover, they claim that the trial judge permitted
the proceedings to continue despite the absence of Mr. Myrie’s attorney, during
which time potentially damaging evidence was introduced by the prosecution.
This included testimony by witness Patrick Barrett, who indicated that he saw
the deceased on the evening of Mr. Grubb’s murder and that he saw people scattering
down the road and that the deceased had something in his hand. It also included
the testimony of District Constable Rupert Samuels, who gave all his evidence
in chief without Mr. Myrie’s attorney being present and claimed, inter alia,
that Mr. Myrie placed a machete to his throat and threatened him.[24]

59. In these circumstances, the Commission considers that it should have been
manifestly evident to the trial judge that conducting the voir dire in the presence
of the jury would potentially prejudice the fairness of Mr. Myrie’s trial contrary
to Article 8(1) of the Convention. Similarly, it should have been evident to
the trial judge that continuing with the trial in the absence of Mr. Myrie’s
trial attorney would potentially prejudice Mr. Myrie and deprive him of his
right to effective representation, including his right under Article 8(2)(c)
of the Convention to adequate time and means for the preparation of his defense,
and his right under Article 8(2)(f) of the Convention to examine witnesses present
in the court, which rights could only be properly and effectively exercised
through the presence of counsel.

60. On this basis, the Commission finds that Mr. Myrie suffered a denial of
justice as a consequence of the manner in which the trial judge conducted his
criminal proceedings, contrary to Articles 8(1) and 8(2) of the American Convention,
in conjunction with a violation of Article 1(1) of the Convention.

61. The Commission has also considered the Petitioners’ allegations concerning
the competence of Mr. Myrie’s trial attorney. In this respect, the Commission
notes that according to Article 8(2)(d) of the Convention, every person accused
of a criminal offense has the right to defend himself personally or to be assisted
by legal counsel of his own choosing. Article 8(2)(e) of the Convention provides
every such person the inalienable right to be assisted by counsel provided by
the State, paid or not as the domestic law provides, if the accused does not
defend himself personally or engage his own counsel within the time limit established
by law. Strict compliance with these and other guarantees of due process are
particularly fundamental in the context of trials involving capital offenses.
The Commission also considers that these rights apply at all stages of a defendant's
criminal proceedings, including the preliminary process, if one exists, leading
to his committal for trial, and at all stages of the trial itself.[25]

62. In the present case, the Commission notes that the State provided Mr. Myrie
with legal representation for the criminal proceedings against him. As with
all rights under the Convention, however, the right to legal representation
must be guaranteed in a manner that renders it effective and therefore requires
not only that counsel be provided, but that defense counsel be competent in
representing the defendant. The Commission has also recognized that the State
cannot be held responsible for all deficiencies in the conduct of State-funded
defense counsel, owing to the independence of the legal profession from the
State and the State’s corresponding lack of knowledge or control over the manner
in which a defense attorney may represent his or her client.[26]
National authorities are, however, required under Article 8(2)(c) of the Convention
to intervene if a failure by legal aid counsel to provide effective representation
is manifest or sufficiently brought to their attention. [27]

63. In the present case, the record does not suggest that Mr. Myrie made it
known to State officials that he considered his legal representation to be inadequate,
prior to or during his trial. However, in the Commission's view, it is apparent
on the basis of information available that it would or should have been manifest
to the trial judge that the behavior of Mr. Myrie’s trial attorney was incompatible
with the interests of justice.[28] In particular, as noted
above, the information available indicates that Mr. Myrie’s attorney failed
to request that the jury retire during the voir dire on the admissibility of
Mr. Myrie’s statement; rather, contrary to established jurisprudence and with
no apparent justification, he requested that the jury remain during the voir
dire and thereby potentially caused Mr. Myrie prejudice by possibly leaving
the jury with the impression that the trial judge had reached a final conclusion
as to Mr. Myrie’s credibility. In addition, Mr. Myrie’s attorney was absent
from the courtroom for portions of the trial, including a period when evidence
potentially significant to Mr. Myrie’s guilt was adduced. According to the Petitioners,
Mr. Myrie’s attorney did not request an adjournment or otherwise attempt to
accommodate his inability to appear. In the Commission’s view, these circumstances
should have led the trial judge to take positive measures to ensure that Mr.
Myrie received adequate legal representation. Rigorous compliance with Mr. Myrie’s
right to competent counsel was also compelled by the fact that he was being
tried for a crime for which, if convicted, he would be sentenced to death. As
with the jury’s presence during the voir dire, the Commission notes that the
conduct of Mr. Myrie’s trial attorney was not a matter that was addressed by
the Court of Appeal in its judgment of January 11, 1993.[29]

64. In these circumstances, the Commission finds further violations of Articles
8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, based upon the inadequacy of Mr. Myrie’s legal representation
during his trial.

65. Finally, in the absence of any observations or information to the contrary,
the Commission considers that these serious violations of due process should
be considered to have deprived Mr. Myrie’s criminal proceedings of their efficacy
from the outset and thereby invalidate Mr. Myrie’s conviction. Consequently,
a re-trial in accordance with due process or, where this is not possible, release,
is the appropriate remedy for the violations of Mr. Myrie’s right to a fair
trial under Article 8 of the Convention.[30]

C. Articles 8 and 25 of the Convention – Right to Judicial Protection

66. The Petitioners argue that Mr. Myrie does not have the financial means
to pursue a Constitutional Motion in respect of violations of his rights under
the Jamaican Constitution and that legal aid is not effectively available for
Constitutional Motions before the courts in Jamaica, and therefore that Mr.
Myrie has been denied recourse to domestic protection against acts that violate
his fundamental rights contrary to Articles 24 and 25 of the Convention. These
provisions of the Convention read as follows:

24. All persons are equal before the law. Consequently, they are entitled,
without discrimination, to equal protection of the law.

25.(1) Everyone has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts that
violate his fundamental rights recognized by the constitution or laws of the
state concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.

(2) The States Parties undertake:

(a) To ensure that any person claiming such remedy shall have his rights determined
by the competent authority provided for by the legal system of the state;

(b) To develop the possibilities of judicial remedy; and

(c) To ensure that the competent authorities shall enforce such remedies when
granted.

67. As noted previously, the Petitioners have claimed that Constitutional Motions
before the domestic courts in Jamaica often involve sophisticated and complex
questions of law which require the assistance of counsel. The Petitioners also
claim that Mr. Myrie is indigent, and the State does not as a matter of practice
provide legal aid to pursue Constitutional Motions in Jamaica. As a consequence,
the Petitioners allege that the State's failure to provide legal aid in order
to present Constitutional Motions constitutes a denial of Mr. Myrie’s access
to the court and to effective remedies, in fact as well as in law.

68. The State has not provided any information refuting the Petitioners’ arguments
in this regard or otherwise indicating that Constitutional Motions or other
recourse to a competent court or tribunal is effectively available to Mr. Myrie
for protection against acts that violate his fundamental rights under domestic
law or the American Convention.

69. In light of the material before it, the Commission is satisfied that Constitutional
Motions dealing with legal issues of the nature raised by Mr. Myrie in his proceeding
before the Commission, such as the propriety of his conditions of detention
and his right to a fair trial, are procedurally and substantively complex and
cannot be effectively raised or presented before a domestic court in the absence
of legal representation. The Commission also finds, in the absence of evidence
to the contrary, that Mr. Myrie lacks the financial means to bring a Constitutional
Motion on his own, and that Jamaica does not provide legal aid to individuals
in Jamaica to bring such motions.

70. Based upon these submissions and the Commission’s existing jurisprudence,
the Commission considers that the State is obliged under the American Convention
to provide individuals with effective access to Constitutional Motions, which
may in certain circumstances require the provision of legal assistance.

71. In particular, Article 25 of the Convention provides individuals with the
right to simple and prompt recourse to a competent court or tribunal for protection
against acts that violate his or her fundamental rights recognized by the constitution
or laws of the State concerned or by the Convention. The Commission has stated
that the right to recourse under Article 25, when read together with the obligation
under Article 1(1) and the provisions of Article 8(1), “must be understood as
the right of every individual to go to a tribunal when any of his rights have
been violated (whether a right protected by the Convention, the constitution,
or the domestic laws of the State concerned), to obtain a judicial investigation
conducted by a competent, impartial and independent tribunal that will establish
whether or not a violation has taken place and will set, when appropriate, adequate
compensation.”[31]

72. Moreover, in the circumstances of the present case, where the Supreme Court
would be called upon to determine Mr. Myrie’s rights in the context of his trial,
conviction and sentencing for a criminal offense, the Commission considers that
the requirements of a fair hearing mandated by Article 8(1) of the Convention
should be interpreted in a manner consistent with the principles in Article
8(2) of the Convention, including the right under Article 8(2)(e) to the effective
assistance of counsel.[32] Accordingly, when a convicted person
seeking constitutional review of the irregularities in a criminal trial lacks
the means to retain legal assistance to pursue a Constitutional Motion and where
the interests of justice so require, legal assistance should be provided by
the State. In the present case, the effective unavailability of legal aid has
denied Mr. Myrie the opportunity to challenge the circumstances of his incarceration
and criminal conviction under the Constitution of Jamaica and the American Convention,
and therefore has contravened his right to a fair hearing under Article 8(1).[33]

73. By denying Mr. Myrie an opportunity to challenge the circumstances of his
trial, conviction and sentencing under the Constitution of Jamaica in a fair
hearing, and by failing to make legal aid available to Mr. Myrie to pursue a
Constitutional Motion in relation to his criminal proceedings, the State has
effectively barred his recourse to a competent court or tribunal in Jamaica
for protection against acts that potentially violate his fundamental rights
under the Constitution of Jamaica and under the Convention. As a consequence,
the State has failed to fulfill its obligations under Articles 25, 8 and 1(1)
of the Convention in respect of Mr. Myrie.[34]

V. PROCEEDINGS SUBSEQUENT TO REPORT 34/02

74. The Commission examined this case in the course of its 118th regular session
and on October 8, 2003 adopted Report N° 50/03 pursuant to Article 50 of the
American Convention.

75. On October 27, 2003, the Commission transmitted Report N° 50/03 to the
State, and requested that the Government of Jamaica inform the Commission within
two months as to the measures adopted to comply the recommendations made to
resolve the situation denounced.

76. The Commission did not receive a response from the State to Report N° 50/03.

VI. CONCLUSIONS

The Commission, based on the foregoing considerations of fact and law, ratifies
its conclusions that:

77. The State is responsible for violating Mr. Myrie’s rights under Articles
5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, because of his conditions of detention.

78. The State is responsible for violating Mr. Myrie’s rights under Articles
8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, due to the trial judge’s failure to ensure that the jury
was not present during the voir dire on Mr. Myrie’s statement, and the trial
judge’s failure to postpone the trial when Mr. Myrie’s counsel was not present
and thereby denying Mr. Myrie full due process during his trial.

79. The State is responsible for violating Mr. Myrie’s rights under Articles
8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, by failing to provide him with the assistance of competent
and effective counsel during his trial.

80. The State is responsible for violating Mr. Myrie’s rights under Articles
25 and 8 of the Convention, in conjunction with violations of Article 1(1) of
the Convention, by failing to provide Mr. Myrie with effective access to a Constitutional
Motion for the protection of his fundamental rights.

VII. RECOMMENDATIONS

81. Based on the analysis and the conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE STATE OF JAMAICA:

1. Grant Mr. Myrie an effective remedy, which includes a re-trial in accordance
with the due process protections prescribed under Article 8 of the Convention
or, where a re-trial in compliance with these protections is not possible, his
release, and compensation.

2. Adopt such legislative or other measures as may be necessary to ensure that
Mr. Myrie’s conditions of detention comply with international standards of humane
treatment under Article 5 of the American Convention and other pertinent instruments,
as articulated in the present report.

3. Adopt such legislative or other measures as may be necessary to ensure that
the right to judicial protection under Article 25 of the Convention and the
right to a fair hearing under Article 8(1) of the Convention are given effect
in Jamaica in relation to recourse to Constitutional Motions.

VIII. PUBLICATION

82. By communication dated March 17, 2004, the Commission transmitted the content
of this report, adopted as Report Nº 34/04 pursuant to Article 51(1) of the
Convention, to the State and to the Petitioners in accordance with Article 51(2)
of the Convention and granted a period of one month within which to inform the
Commission of the measures taken to comply with the Commission's recommendations.
The State failed to present a response within the time limit prescribed by the
Commission.

83. Based upon the foregoing considerations, and in the absence of a response
by the State to Report Nº 34/04, the Commission in conformity with Article 51(3)
of the American Convention and Article 45(3) of its Rules of Procedure decides
to ratify the conclusions and reiterate the recommendations in this Report,
to make this Report public, and to include it in its Annual Report to the General
Assembly of the Organization of American States. The Commission, according to
the norms contained in the instruments which govern its mandate, will continue
evaluating the measures adopted by the State of Jamaica with respect to the
above recommendations until they have been complied with by Jamaica.

Done and signed in the city of Washington, D.C., on the 12th day of the month
of October, 2004. (Signed): Clare K. Roberts, First Vice-President; Susana Villarán,
Second Vice-President; Evelio Fernández Arévalos, Paulo Sérgio Pinheiro, Freddy
Gutiérrez Trejo and Florentín Meléndez, Commissioners.

[5] Petitioners’ petition, para. 15,19, citing European Committee
for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment
(CPT), Second General Report on the CPT’s Activities Covering the Period 1 January
to 31 December 1991, Ref CPT/Inf (92) 3 (1992), April 13, paragraphs 44-50.

[6] Petitioners’ petition, paras. 15,21, 15.22, citing UNHRC,
General Comment 7(16) on Article 7 of the ICCPR; UNHRC, General Comment on Article
10 of the ICCPR.

[12] According to the Petitioners, Article 20(1) and (6) of
the Jamaican Constitution provide as follows:

20(1) Wherever a person is charged with a criminal offense he shall, unless
the charge is withdrawn, be afforded a fair hearing within a reasonable time
by an independent and impartial court established by law.

(6) Every person charged with a criminal offense –

(a) Shall be informed as soon as reasonably practicable, in a language he understands,
of the nature of the offense charged;

(b) shall be given adequate time and facilities for the preparation of his
defence;

(c) shall be permitted to defend himself in person or by a legal representative
of his own choice;

(d) Shall be afforded the facilities to examine in person or by his legal representative
the witnesses called by the prosecution before any court and to obtain the attendance
of witnesses, subject to the payment of their reasonable expenses, and carry
out the examination of such witnesses to testify on his behalf before the court
on the same condition as those applying to witnesses called by the prosecution;
and

(e) shall be permitted to have without payment the assistance of an interpreter
if he cannot understand the English language.

[15] In its merits judgment in the Hilaire, Constantine and
Benjamin et al. Case, for example, the Inter-American Court found that the conditions
of detention of the victims constituted cruel and inhumane treatment contrary
to Articles 5(1) and 5(2) of the Convention. These conditions included confinement
in grossly overpopulated and unhygienic conditions that lacked sufficient ventilation
and natural light and were located in close proximity to the execution chamber.
The prisoners were also denied adequate nutrition, medical services or recreation,
which the Court found exacerbated the state of mental anguish in which they
lived. I/A Court H.R., Hilaire, Constantine and Benjamin et al. (Trinidad and
Tobago), Judgment of 21 June 2002, Ser. C Nº 94, paras. 84, 168-170. See similarly
McKenzie et al. Case, supra, paras. 270-291.

[17] Id., citing U.N.H.R.C., Mukong v. Cameroon, Communication
Nº 458/1991, U.N. Doc. Nº CCPR/C/51/D/458/1991 (1994), para. 9.3 (observing
that certain minimum standards governing conditions of detention for prisoners,
as prescribed by the International Covenant on Civil and Political Rights and
reflected in the U.N. Standard Minimum Rules for the Treatment of Prisoners,
must be observed regardless of a state party's level of development).

[19] McKenzie et al. Case, supra, para. 298. The Commission
notes in this regard that Mr. Myrie appealed his conviction and sentence to
the Jamaica Court of Appeal, and on January 11, 1993, the Court of Appeal dismissed
his appeal but classified the murder as non-capital and reduced his sentence
from death to life imprisonment with a minimum term to serve before parole of
15 years. In rendering its decision, the Court considered elements of the manner
in which the trial judge conducted the trial, including the judge’s instructions
to the jury. See R. v. Whitley Myrie, Judgment of January 11, 1993, Supreme
Court Criminal Appeal Nº 128/91 (Court of Appeal of Jamaica).

[30] See I/A Court H.R., Castillo Petruzzi et al., Judgment
of May 30, 1999, para. 219 (finding that in circumstances in which the acts
upon which a judgment stands are affected by serious defects that deprive them
of the efficacy they should normally have, “then the judgment will not stand.
It will not have the necessary underpinning, which is litigation conducted by
law. The concept of nullification of a proceeding is a familiar one. With it,
certain acts are invalidated and any proceedings that followed the proceeding
in which the violation that caused the invalidation occurred, are repeated.
This, in turn, means that a new judgment is handed down. The legitimacy of the
judgment rests upon the legitimacy of the process").

[32] See McKenzie et al. Case, supra. See also I/A Court H.R.,
Constitutional Court Case, Judgment of January 31, 2001, Ser. C Nº 7, paras.
69, 70 (finding that the minimum guarantees established under Article 8(2) of
the Convention are not limited to judicial proceedings in a strict sense, but
also apply to proceedings involving the determination of rights and obligations
of a civil, labor, fiscal or other nature.).

[33] See also Hilaire, Constantine and Benjamin et al. Case,
supra, para. 148. See similarly Currie v. Jamaica, supra, para. 13.4 (concluding
that where a convicted person seeking Constitutional review of irregularities
in a criminal trial has not sufficient means to meet the costs of legal assistance
in order to pursue his Constitutional remedy and where the interests of justice
so require, Article 14(1) of the International Covenant on Civil and Political
Rights required the State to provide legal assistance).